Brexit and the UK Political and Constitutional Crisis: the Fixed-term Parliaments Act

Asif Hameed (Southampton Law School)

The prime minister, Boris Johnson, has not had his way on Brexit. The UK is scheduled to leave the EU on October 31. On September 9 the “Benn Bill” became law and tied the government’s hands. Assuming that a withdrawal agreement is not secured – and that the House of Commons continues to oppose a no-deal Brexit – the PM is required by October 19 to ask the EU for an extension. The PM twice called for a snap election, suggesting October 15 as polling day. He was gambling on victory and a stable majority, potentially allowing him to move quickly to repeal the Benn Bill before October 19. His efforts were thwarted under the Fixed-term Parliaments Act 2011(FTPA). The legislation is in need of reform but not in the way that the government thinks. It should be amended to check the government even more effectively.

A snap election supported by two-thirds of MPs

The FTPA permits an early election (1) if at least two-thirds of MPs agree, or (2) through a stipulated no confidence process. Circumstances have favoured the government on (2), but not on (1).

Taking (1) first, the PM has twice failed to attract the supermajority needed for a snap election. The supermajority condition obstructs attempts to dissolve parliament for partisan advantage. We have, for the moment, a zombie government that is incapable of getting its business through the Commons. This has amplified concerns about the FTPA’s workings but they should be resisted. An election is clearly on the horizon; the delay is short and driven by the peculiar circumstances of the October 31 deadline. The underlying reason for semi-fixed parliamentary terms remains untouched – namely, no single governing party should be entitled to dissolve parliament in pursuit of its own partisan interests. Snap elections are political decisions, and we should demand a broader consensus among parties whose (undoubtedly partisan) incentives coincide. Researchindicates that, left to their own devices, single governing parties time elections to achieve electoral benefits. Elections are also costly and disruptive. The case for insisting that a single governing party – potentially a minority party – must possess an exclusive power to dissolve parliament unilaterally remains a difficult one to make.

The FTPA scheme is not perfect, however. If two-thirds of MPs support an early election, the election date is set by the Queen on the PM’s recommendation. The FTPA establishes no explicit timing restrictions – whether in regulating exactly when the PM must make a recommendation, or indeed what the actual date should be. This opens the door to modest partisan manipulation, undercutting the overall scheme.

The no confidence process

The FTPA also permits an early election through its stipulated no confidence process. An initial no confidence motion must be tabled and, if passed, a 14-day window is triggered during which a viable administration is sought. If that period lapses without a further motion being passed – “That this House has confidence in Her Majesty’s Government” – an early election must take place.

Circumstances this autumn have favoured the government and drawn attention to weaknesses in the legislative scheme. Jeremy Corbyn, as Leader of the Opposition, had been contemplating a no confidence motion once parliament reconvened on September 3. But the option disintegrated with the government’s move to suspend parliament from the second week of September until October 14. Notably, the narrow September window would deny MPs the full 14 days stipulated under the FTPA. One might think that the legislation would furnish an implied limit on prorogation, but this runs up against an FTPA provision according to which the legislation “does not affect Her Majesty’s power to prorogue Parliament”.

A second weakness with the legislative scheme is that it is silent on the 14-day period. Although a viable alternative administration may strive to be appointed, the FTPA does not make explicit provision for a PM who, preferring to take his chances at the ballot box, stubbornly squats in Downing Street in order to run down the clock. A further problem, noted already, is that the PM would choose the election date as well.

Changing the Fixed-term Parliaments Act?

The FTPA falls short because it does not go far enough. In fact, minor reform to the stipulated early election and confidence motions could yield meaningful change. Rather than prescribing the exact wording of such motions, the legislation should permit more elaborate motions that merely begin with a prescribed phrase. This would liberate the FTPA’s working provisions. It would permit MPs to indicate the timing of polling day in an early election motion (and the FTPA could be amended to treat that date as binding). Regarding confidence motions, MPs would be able to draw the Queen’s attention to an alternative PM who could best command the confidence of the Commons.

One outstanding weakness remains: the FTPA attends to dissolution but neglects prorogation. Legislative reform of prorogation is an involved matter and requires thorough scrutiny. In the meantime, Scottish judges have acted; the Court of Session has delivered an extraordinary ruling that the government’s advice on the autumn prorogation was unlawful.

Most European democracies restrict governmental power to dissolve the legislative assembly. The FTPA is part of this trend. While it requires reform, we should take care not to throw the baby out with the bathwater.

The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog